Citation Nr: 9837747
Decision Date: 12/29/98 Archive Date: 01/05/99
DOCKET NO. 96-18 968 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for a temporomandibular
joint disorder (TMJ).
2. Entitlement to service connection for migraine headaches
as secondary to a temporomandibular joint disorder.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Crawford, Associate Counsel
INTRODUCTION
The veteran had active service from June 1990 to August 1995.
In January 1996, the Department of Veterans Affairs (VA)
Regional Office (RO) denied entitlement to service connection
for a bilateral wrist disorder, temporomandibular joint
disorder, and migraine headaches. The RO granted service
connection for a lumbosacral disability and rated it at
20 percent and service connection for a right and left knee
disability and separately rated each disability at
10 percent. Within the same month, the veteran expressed
disagreement with the denials for service connection and with
the assigned ratings for the back and knee disabilities.
Accordingly, a statement of the case was issued in March
1996. With regard to the bilateral wrist disorder,
temporomandibular joint disorder, and migraine headache
issues, a substantive appeal was received in April 1996.
However, with regard to the increased rating issues, on
substantive appeal the veteran conceded the assigned ratings
for the lumbosacral disability and knee disabilities.
Considering the veteran’s statement, the issues of
entitlement to an increased rating in excess of 20 percent
for lumbosacral disability, entitlement to an increased
rating in excess of 10 percent for a right knee disability,
and entitlement to an increased rating in excess of
10 percent for a left knee disability have properly been
withdrawn from appeal. VA regulations provide that an
appellant may withdraw an appeal at any time before the Board
of Veterans’ Appeals (Board) promulgates a decision.
38 C.F.R. § 20.204. When an appellant withdraws the appeal,
the Board may dismiss the appeal because it fails to allege
specific error of fact or law in the appealed RO
determination. 38 U.S.C.A. § 7105(d)(3) (West 1991);
38 C.F.R. § 20.202.
Regarding the bilateral wrist disorder, as noted above, the
veteran perfected an appeal for service connection. In
January 1997, service connection for a bilateral wrist
disorder was granted and rated at 10 percent, effective from
August 2, 1995, and in May 1998, the hearing officer
separately assigned a 10 percent evaluation for the right and
left wrist disabilities, effective from August 2, 1995.
Because the issue on appeal, service connection for a
bilateral wrist disorder, was granted in January 1997 and a
claim for an increased rating has not been properly developed
for appellate review, there are no allegations of error of
fact or law for the Board to consider. Therefore, in
accordance with Grantham does not have jurisdiction to review
the veteran’s claim. See Grantham, supra; Barnett v. Brown,
83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. § 7105(d)(5)
(West 1991); 38 C.F.R. § 20.200 (1998). In Grantham v.
Brown, 114 F.3d 1156 (Fed. Cir. 1997), the United States
Court of Appeals for the Federal Circuit held that, for
purposes of initiating appellate review, a Notice of
Disagreement applies only to the element of the claim
currently being decided, such as service-connectedness, and
necessarily cannot apply to “the logically down-stream
element of compensation level” if the service connection
claim is subsequently granted. Id.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that her temporomandibular joint disorder
began in service and as such, service connection is
warranted. She also attributes her migraine headaches to the
temporomandibular joint disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the claims of entitlement
to service connection for temporomandibular joint disorder
and migraine headaches as secondary to temporomandibular
joint disorder are not well grounded.
FINDINGS OF FACT
1. The competent evidence of record does not establish that
the veteran currently has a temporomandibular joint disorder.
2. There is no competent evidence of record establishing
that the veteran’s migraine headaches are related to service
or to any service-connected disability.
3. The claims are not supported by cognizable evidence
showing that they are plausible or capable of substantiation.
CONCLUSIONS OF LAW
1. The claim of entitlement to service connection for
temporomandibular joint disorder is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
2. The claim of entitlement to service connection for
migraine headaches is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Any claimant who submits a claim for benefits under a law
administered by the Secretary shall have the burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible
claim, one which is meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). The test is an objective one which explores the
likelihood of prevailing on the claim under the applicable
law and regulations. Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992). Thus, although a claim need not be conclusive to
be well grounded, it must be accompanied by supporting
evidence. 38 U.S.C.A. § 5107(a); Tirpak, supra. The quality
and quantity of the evidence required to meet this statutory
burden depends upon the issue presented by the claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
Service connection may be established for a disability
resulting from personal injury incurred or disease contracted
in the line of duty or for aggravation of a preexisting
injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991).
The regulations also state that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service or
aggravated by service. 38 C.F.R. § 3.303 (1998).
VA regulations also provide that disability which is
proximately due to or the result of a service-connected
disease or injury shall be service connected. When service
connection is thus established for a secondary condition, the
secondary condition shall be considered a part of the
original condition. 38 C.F.R. § 3.310 (1998).
When aggravation of a veteran’s non-service-connected
condition is proximately due to or the result of a
service-connected condition, the veteran shall be compensated
for the degree of disability over and above the degree of
disability existing prior to the aggravation. Allen v.
Brown, 7 Vet. App. 439 (1995). The Court held that the term
“disability” refers to impairment of earning capacity, and
that such definition mandates that any additional impairment
of earning capacity resulting from an already service-
connected condition, regardless of whether the additional
impairment is itself a separate disease or injury caused by
the service-connected condition, shall be compensated.
A well-grounded claim for service connection generally
requires (1) medical evidence of a current disability; (2)
medical or, in certain circumstances, lay evidence of in-
service incurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between the claimed in-
service disease or injury and the present disease or injury.
See Caluza, supra; see also Epps v. Gober, 126 F.3d. 1464
(Fed. Cir. 1997).
The second and third Caluza elements can also be satisfied
under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a
condition was noted during service or during an applicable
presumption period; (b) evidence showing post-service
continuity of symptomatology; and (c) medical or, in certain
circumstances, lay evidence of a nexus between the present
disability and the post-service symptomatology. See 38
C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97
(1997). Alternatively, service connection may be established
under § 3.303(b) by evidence of (i) the existence of a
chronic disease in service or during an applicable
presumption period and (ii) present manifestations of the
same chronic disease. Id.
For the purpose of determining whether a claim is well
grounded, the credibility of the evidence in support of the
claim is presumed. See Robinette v. Brown, 8 Vet. App. 69,
75 (1995). Nevertheless, where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is
“plausible” is required. Grottveit at 93. A lay person is
not competent to make a medical diagnosis or to relate a
medical disorder to an in-service injury or treatment. See
Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992).
In this case, the service medical records show that on
enlistment examination in February 1990, clinical findings
were normal. However, in August 1991, the veteran complained
of sore teeth from clinching and symptoms associated with a
temporomandibular dysfunction (TMD). The reports also show
that on TMD consultation in March 1992, the veteran gave a
history of nocturnal bruxism over a five-year period. She
stated that her muscles had become very sore several times
during the year. Complaints of occasional headaches about
once every three to four months in the temporal area along
with the tendency to clinch her teeth frequently during the
day was also noted. On evaluation, clinical findings were
essentially normal, except slight muscle tenderness on
palpation of left and right temporalis and origin of deep
muscles was noted. The assessment was no obvious
temporomandibular joint disorder pathology, muscle tenderness
secondary to clinching and bruxism. The veteran received a
splint for nocturnal wear to decrease morning headaches.
From August 1991 to October 1992, the service medical records
show that the veteran wore the splint and expressed no
continued complaints. An October 1992 clinical entry,
documented that no further treatment was needed. However, in
March 1995, temporomandibular joint disorder, symptomatic,
was indicated and on an April 1995 Dental Health
Questionnaire, the veteran stated that a diagnosis of TMJ had
been made.
The record then shows that on VA dental examination in
October 1995, the veteran recalled wearing a nightguard for
bruxism approximately four years before but discontinued
using it because she no longer needed it. The veteran stated
that bruxism occasionally awakened her and caused sore facial
muscles. She did not reference experiencing headaches. On
objective evaluation dentation in good repair and fair
hygiene were noted. Evaluation also disclosed evidence of an
occasion pop yielding transient pain over a few seconds of
the right temporomandibular joint with right masseter and
external pterygoid muscles mildly tense and tender to
palpation. No balancing occlusal interference was found but
occlusal wear facets were present. Evidence of minor
temporary muscle tenderness in the morning was also noted;
otherwise, no ancillary problems as a result of the dental
disorder were demonstrated. A September 1995 report of an x-
ray study was unremarkable for any pathology and the
temporomandibular joints were within normal limits. No
diagnosis was made.
On general medical examination, the veteran stated that her
headaches began in service in 1991. The headaches occurred
because of military stress and stress from her employment and
marital difficulties. Currently, the headaches were not
specifically related to any triggers and were non-responsive
to Motrin and rest. However, the veteran added the nighttime
tooth grinding contributed to her headaches. Until 1993, her
headaches occurred approximately everyday or every other day
until 1993 and after that time, they occurred every four to
five months. The veteran added that her latest headache
occurred a month before examination and lasted three days.
However, eye involvement, pain with heavy with pressure
across the forehead, and dizziness without nausea or
vomiting, were present. She also had difficulty mentally and
visually focusing. No visual impairment and neurological
changes was otherwise noted. Increased anger and
irritability and temporomandibular joint discomfort, which
she believed differed from the headaches, were also
documented. On examination, clinical findings were normal.
The relevant diagnosis was chronic headaches, primarily
muscle tension related symptoms. The examiner stated that
the headaches may be triggered by or related to
temporomandibular joint pain or low back pain. The examiner
also stated that it seemed difficult to sort out the headache
triggers made as each mechanism seemed feasible.
At her personal hearing in October 1996, the veteran stated
that she initially experienced problems with her
temporomandibular joint after joining service. She explained
that in late 1991 should would clinch her teeth and awaken
with headaches. On one occasion she recalled that because of
clenching and grinding her teeth upon awakening she
experienced throbbing pain to the side of her head. The
veteran acknowledged periods of stress during that time,
including marital problems and maintaining military weight
requirements. The veteran then testified that a mouth guard
was prescribed. The Board also acknowledges that during the
hearing, the hearing officer acknowledged that while in
service the veteran’s dental records noted TMD but on recent
VA examination, a diagnosis of TMJ was not made. When the
veteran was asked if she continued to have problems since
service, the veteran stated that the disorder had subsided
“a bit” since she was not experiencing stressful
situations. The veteran added that she grinds her teeth when
she is “stressed out.” The veteran also acknowledged
grinding her teeth prior to service when feeling stressed and
stated that her headaches had subsided although still
experienced them because of sinus problems.
VA outpatient treatment reports extending from September 1995
to June 1997 show that the veteran gave a history of bruxism,
but no complaints of or treatment for temporomandibular joint
disorder was made.
Regarding temporomandibular joint disorder, the record shows
that the veteran’s claim is not well grounded. The evidence
submitted by the veteran shows that even though she
occasionally grinds and clenches her teeth, she does not have
a temporomandibular joint disorder nor has she presented any
evidence of recurrence of the disorder from when she received
treatment while in service. On VA dental examination in
October 1995, in spite of the positive findings of popping
and tenderness of the right TMJ, x-rays findings were
unremarkable for any pathology and a diagnosis was not made.
In addition, at her personal hearing in October 1996, the
veteran attributed her in-service difficulties to stress and
stated that since service, the grinding and clenching had
subsided. The veteran added that she clenches and grinds her
teeth when she experienced personal difficulties. The Board
also points out that VA outpatient treatment reports
extending from September 1995 to June 1997 make no reference
to the veteran's alleged TMJ disorder, except when a history
of bruxism was given as part of her medical history.
Otherwise, the records are devoid of any mention of
complications, treatment, or any continuing symptoms or
findings associated with TMJ. In this case, the veteran has
not offered any evidence that any disorder incurred in
service resulted in chronic disability or that she
experiences any residuals from any in-service treatment, or
that she currently has the disorder. thus, her claim is not
well grounded.
In the case at hand, the veteran seeks to well-ground her
claim upon the fact that she complained of grinding and
clenching while in service and received treatment and her
statement that she currently is experiencing pain of the
temporomandibular joint disorder; however, that is not enough
under 38 U.S.C.A. § 5107(a). See Chelte v. Brown, 10 Vet.
App. 268, 271 (1997); Caluza, supra. In the absence of
competent medical evidence of a current disability and a
causal link to service or evidence of chronicity or
continuity of symptomatology, the claim is not well grounded.
Id. In this case, despite the veteran’s complaints, the
Board’s perusal of the record shows no claim of or proof of
present disability. Rabideau v. Derwinski, 2 Vet. App. 141,
143-44 (1992).
Regarding service connection for migraine headaches, it is
initially acknowledged that while in service in August 1991
and March 1992, the veteran complained of experiencing
headaches as secondary to TMD and symptoms which included
grinding and clinching of the teeth. It is also acknowledged
that a diagnosis of chronic headaches, primarily muscle
tension related symptoms, has been made. However, there is
no competent evidence of record demonstrating that the
veteran’s in-service headaches resulted in a chronic
disability and as noted above, service connection for a
temporomandibular joint disorder has not been established.
In this regard, the Board initially notes that in 1995, the
examiner stated that the veteran’s headaches may be triggered
by or related to TMJ pain or lower back pain and that it was
difficult to sort out the trigger as both of the mechanisms
seemed feasible. However, on dental examination in October
1995, clinical and laboratory findings were essentially
normal and a diagnosis of TMJ was not made. Accordingly,
entitlement to service connection for migraine headaches as
secondary to TMJ is not warranted. Service connection for
TMJ has not been granted and entitlement to service
connection for migraine headaches on a secondary basis cannot
be established. See generally 38 C.F.R. § 3.310.
Finally, the veteran is not competent to render a diagnosis
of TMJ and relate her chronic headache disorder to service,
any events from service, or to any service-connected
disability. Lay persons are not competent to relate a
medical disorder to an in-service event or occurrence. See
Espiritu, 2 Vet. App. at 494. Where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is
“plausible” is required. Grottveit, supra.
It is noted that the veteran has been informed of what
evidence is required to establish a well-grounded claim and
during the pendency of the appeal, the veteran was informed
of the evidence necessary to complete her case. Robinette v.
Brown, 8 Vet. App. 69 (1995). In addition, there does not
appear to be any outstanding evidence of which VA is on
notice; thus, there is no duty to assist. See Epps v. Gober,
126 F.3d. 1464 (Fed. Cir. 1997).
ORDER
Entitlement to service connection for a temporomandibular
joint disorder is denied.
Entitlement to service connection for migraine headaches as
secondary to a temporomandibular joint disorder is denied.
V. L. Jordan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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